Copyright, Distance Learning, and Digital Media Barbara M. Waxer Delgado Community College January 9, 2007 Know the law, empower your students … and breath easier

Overview  Myths we love  Copyright 101  Online and distance education  Finding work you and your students can use 2

Myths  You can use anything you can download from the Internet  You can use any amount of any work as long as it’s for class  If a work does not contain the copyright symbol ©, it is not protected by copyright  As long as you’re not making a profit, you can use copyrighted materials in class 3

Myths  If you change an original enough, then you can consider it a new work you created  You can use anything as long as you give credit  If you buy a book or movie, you can digitize it and use it however you want  No one will find out or come after little old you 4

TRUE or  The sole purpose of copyright protection is to protect an author’s exclusive rights to their work  [The goal is to] promote the Progress of Science and useful Arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate.” ― Justice Sandra Day O'Connor 5 FALSE

Copyright Fundamentals  Authority to establish Copyright Law comes from the US Constitution  Is a balance between the interests of owners/authors with interests of the public  Gives authors exclusive rights to control over how their work can be used 6

Copyrightability Factors  Expression: a person’s unique output  Photography, writing, music, dance  Originality: some modicum of creativity  Not necessarily novel or unique  Fixation: established in a tangible medium  The work exists and can be experienced 7

Copyrightability 8

Protected Works  Literary works  Musical works, including any accompanying words  Dramatic works, including any accompanying music  Pantomimes and choreographic works  Pictorial, graphic, and sculptural works  Motion pictures and other audiovisual works  Sound recordings  Architectural works 9

Works Not Protected  Ideas, processes, systems  Facts themselves v. selection and arrangement  Public domain  Federal government publications  Titles, names, short phrases, slogans  May be eligible for trademark protection 10

Scenes à Faire & Merger Doctrine 11 Haunted House = scary storyCowboy = Old West Variations on a Zoom Tool from different applications

You write a story about your vacation–at what point is it protected by copyright? A) When you first think of it B) When you write it down C) When you register it with the Copyright Office D) When you present it in class 12

Start and Duration  Copyright attaches as soon as work is created - Automatic  Scribbled, drawn, keystroked, recorded  Generally, copyright lasts the life of the author plus 70 years  Registration and notice not required but provide warning to world and special legal protections  © Copyright symbol no longer required on a work 13

Term of Copyright 14

or FALSE  The following statement is an official statement made by a member of Congress: “Copyright should last forever minus one day” — Mary Bono, widow of Sonny, who sponsored the CTEA 15 TRUE

Copyright Ownership  Vests initially in author or authors of work  Work made for hire  Work prepared by an employee within scope of employment  Work specifically ordered or commissioned and contract says so  Employer or person for whom work prepared is considered author  Academic Exception cloudy, especially with online classes  Technological solutions (DMCA and DRM) 16

Rights of Copyright Owners section

Limitations to Exclusive Rights  Fair Use (section 107)  Libraries and Archives (section 108)  First Sale Doctrine (section 109)  Copyright does not transfer to the buyer when you buy a book, CD, or DVD—the sale transfers only the physical copy to you  Educational exception for certain activities (section 110) 18

19 Fair Use  Purposes include:  Criticism  Comment  News reporting  Teaching (including multiple copies for classroom use)  Scholarship  Research

20 Fair Use Factors  Factors include but are not limited to:  Purpose and character of use (commercial v. nonprofit educational purposes)  Nature of the copyrighted work (fact v. fiction)  Amount and substantiality of the portion used in relation to the copyrighted work as a whole  Effect of the use on the potential market for or value of the copyrighted work

Fair Use  Decided in courts on case-by-case basis  No set formula  Educational safe harbor guidelines - CONTU  Minimum not maximum standards of educational fair use  Brevity, spontaneity, cumulative effect  Fair Use argument legally trumps any guidelines  But will educational institution agree to defend 21

22 How much can I copy?

Infringement  Violating one of the exclusive rights granted to a copyright owner  Making unauthorized use of a work  Damages can be up to $150,000 for each instance of willful infringement  Intent of the infringer is not a defense  Ignorance of the law is not a defense 23

Proving Infringement 24

Infringement Scenarios 25

26 Infringement

27 Dost Thou Infringe?

28 Dost Thou Infringe?  ry/cases/case_campbellacuff.html ry/cases/case_campbellacuff.html

29 A Mouse or THE Mouse?

30 Dost Thou Infringe?

If a work is in the public domain: A. You can create a derivative work from it only if no one else does so first B. You can use it however you want C. You can only use it once D. It must be very old 31

Public Domain  Works no longer protected by copyright  Copyright expired or lost over time or by circumstance  Work donated to public domain  Can use and modify work in the public domain however you wish  Generally, works created before 1924 are in the public domain 32

33 Can I Use It? Decision Chart

Some consider the laws guiding online education to: A. Limit copyright protection B. Expand copyright protection C. Clarify copyright protection D. Confound the entire concept 34

TEACH Act  Deals exclusively with virtual classroom  Purpose is allow some copying  Still based on live classroom paradigm  Focus is on centralized policy  Duties of institutional policymakers  Accredited nonprofit institution  Establish copyright policy and inform staff, faculty, and students  Inform students that materials are protected  Only for enrolled students 35

Duties of IT Staff  Provide limited access  Ensure technological controls on storage and dissemination  Cannot interfere with controls in digitally protected work  Ensure limited copy retention  Ensure limited long-term retention 36

Duties of Instructors  Engage in decision making based on tradition of academic freedom  Types of work expanded for transmittal  All of a non-dramatic literary or musical work  Reasonable and limited portions  Amounts comparable to typical face-to-face displays  Work an integral part of the class session  Reasonable portions of work used 37

Duties of Instructors  Explicitly excluded  Commercial works sold or licensed for purposes of digital distance education  Works suspected to be unlawfully acquired  E-coursepacks  E-reserves allowed  Limit works to what would be used or displayed in a live classroom 38

Checklist for Compliance    fp.uni.edu/teachact/checklist.htm fp.uni.edu/teachact/checklist.htm 

40 Finding Material  Get permission from copyright holder  Conform to terms of use  Use sites that include public domain works  Use site that include flexible copyright licenses  Creative Commons  Use compilations

Seeing the phrase “for educational use only” on two Web sites tells you: A) You can use material from both sites if you are an instructor B) You can use material from both sites if you are a student C) You should find out what each Web site means by educational use D) You can use material from both sites in any instructional setting 41

42 Termsof Use Terms of Use

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Resources  Audio  A1FreeSounds A1FreeSounds  The Free Sound Project The Free Sound Project  Music  Looperman Looperman  Internet Archive Internet Archive  Video  Blip TV Blip TV  Library of Congress Library of Congress  Photos  Flickr – includes Creative Commons search capability Flickr  MorgueFile MorgueFile  Stock xchng Stock xchng 45